Dharshan Weerasekera, Attorney-at-law

Who is this that darkeneth counsel by words without knowledge?

                                                                                                Job, 38:2

1. B. S. Jeyaraj has written a lengthy commentary on the judgment in H. K. D. Chandrasoma’s case, published in the Daily Mirror of 19^th August 2017 and titled, ‘Federalism is not Separatism, rules the Supreme Court.’

As far as I understand it, Mr. Jeyaraj’s argument is that the judgment is important because of two reasons:  first, it has definitively established that the Illangai Tamil Arasu Kadchi (ITAK) political party is not a separatist party, and second, to advocate for federalism in Sri Lanka is not the equivalent of advocating for separatism.

If Chandrasoma had won the case, the ITAK would have been proscribed as a separatist party, which means that R. Sampanthan, M. A. Sumanthiran PC, C.V. Wigneswaran, and a host of lesser lights in the TNA elected to the Parliament or to Provincial Councils under the ITAK banner will have immediately lost their jobs.  So in that sense they dodged a bullet.

As Counsel for the Petitioner, I have certain insights into the case that I hope will contribute to a more robust and meaningful public discussion of this important case.  I shall briefly discuss four issues:  one, why Chandrasoma filed the case; two, some salient facts about the background to the 6^th Amendment; three, the Petitioner’s main argument and the court’s responses to them  (i.e. the essence of the judgment); and finally, why I think the judgment is important for our times.

The reason for filing the case

As much as I understand it, Chandrasoma’s fear – and I think it is a fear shared by many other Sinhalas not just the nationalists – is that the TNA, ITAK and their assorted allies are laying the legal groundwork for a future unilateral secession either through a referendum held just for the residents of the North and East, or by a unilateral declaration of independence by a Provincial Government or an independent group operating within such a province (we can call this later the ‘Kosovo method.’)

My instructions were to explore legal means of preventing such an eventuality.  We decided to go with the 6^th Amendment to the Constitution, because it had never been interpreted in its 35-year existence.  Win or lose, at the end of the case there was going to be an interpretation of the 6^th Amendment, and that was going to be an advancement of the law.  Now, we do have such an interpretation, and in that sense, Chandrasoma has won.

The background to the 6^th Amendment

The 6^th Amendment to our Constitution is almost a word for word replication of India’s Unlawful Activities Prevention Act of 1967, enacted to combat secessionist and separatist movements.  The difference between the Indian version and our own is that in India the action is filed at the High Court, whereas in our country the action is filed in the Supreme Court.

The advantage in the Indian version is that if the respondent is found guilty he has a chance to appeal, whereas with us, there is no such option.  (In my view, this is a weakness in our law that needs to be addressed, but in any event the petitioner resorted to the law he had in hand.)

The point is that, the Indians have been making vigorous use of their law, unlike in our country, and in fact the Indian Parliament has seen fit to amend the Act six times since `1967, each time making it more rigorous.  There is a rich body of Indian case law which has interpreted the Act and its uses over the years.

In my view, the above facts reveal two things:  first, the Indian Parliament plus the courts have considered that the Unlawful Activities Prevention Act is an effective means of combating secessionism and separatism in that country, and two, that perhaps given a federal system such as what the Indians have, coupled with the realities of communalism which are an integral part of Indian politics, a device such as the UAPA is essential in order to maintain the territorial integrity of the country in the long run.

Since Sri Lanka has adopted key elements of the Indian federal system with the 13^th Amendment, Sri Lanka has important lessons to learn from the above two points, especially with respect to using the 6^th Amendment.  By facilitating an interpretation of the 6^th Amendment, Chandrasoma has made it possible for other concerned citizens to resort to this provision more easily.  So, in that sense also Chandrasoma has won.

The Petitioner’s main arguments  

The Petitioner’s claim was that explicit statements in the ITAK’s Constitution plus reasonable inferences that can be drawn from relevant passages in that document indicate that the arrangement of government the ITAK is seeking is that of a ‘Confederation,’ and that, since a ‘Confederation’ by definition involves a union of sovereign states, ITAK seeks is to establish such a sovereign state, namely, Tamil Eelam.

The Petitioner relied on three arguments in order to support the above claim:  first, an Amendment to the ITAK Constitution in 2008, which substituted the word ‘Innaipachi’ for the word ‘Samasthi’ with reference to the type of government what the ITAK is seeking.  It is not in dispute that the Sanskrit work ‘Samasthi’ means ‘federal.’  Chandrasoma’s claim was that the word ‘Innaipachi,’ read in the context of certain ideas and concepts contained in the relevant passage, can only mean ‘Confederation.’

Second, in its passage on ‘aims and objects’ the ITAK asserts that the Tamils of Sri Lanka have a right to self-determination under international law.  Chandrasoma’s claim was that, a right to self-determination is only claimed by people who want to liberate themselves from another people or a country, such as in the case of colonial occupation.  Therefore, to assert a right to self-determination indicates that the ITAK harbours an intention of separating from the Sinhalas and the rest of Sri Lanka, and this in turn indicates they have an intention of setting up a separate state.

Third and finally, the Petitioner focused on ‘Rule 17’ of the Amendment to the ITAK’s Constitution where ITAK unambiguously endorses ‘all resolutions and actions taken by the Tamil United Liberation Front and the Illankai Tamil Arasu Kadchi from 14^th May 1976.’  It is not in dispute that the Vaddukodai Declaration, a seminal separatist document (among other things it was considered by Vellupillai Prabakaran as giving him a mandate for his actions) was signed by the TULF on 14^th May 1976.

So, Chandrasoma’s claim was that, the fact that the ITAK has endorsed all TULF resolutions going back specifically to 14^th May 1976 means that ITAK has unmistakably endorsed the Vaddukoddai Resolution, which indicates that it continues to harbour separatist intentions.

What does the court say to these charges?  On the first count, the court says that the change in words from ‘Samasthi’ to ‘Innaipachi’ does not connote a change in meaning or objective, and that what ITAK had done was to substitute for a Sanskrit word a pure Tamil word of equivalent meaning.  The court pointed out that ITAK had made such substitutions in a number of other places in the Constitution also.

On the second count, court says that ‘self-determination’ has an internal dimension, and that the fact that someone asserts ‘self-determination,’ does not necessarily mean they harbor an intention to secede, but could mean that they wish to gain more power for themselves within the existing system.  Such an ambition cannot be considered as amounting to a separatist intention.

On the third count, court says that, because the Petitioner had not listed the TULF as a Respondent, and it was the TULF that had originally signed the Vadukoddai Declaration, the fact that the ITAK has endorsed all resolutions and acts of the TULF going back to 14^th May 1976 is irrelevant for purposes of the present case.

It is an astute point, because it is possible that the TULF, between 1976 and 2008, adopted a resolution renouncing the Vaddukodai Declaration, in which case the ITAK would necessarily have endorsed such resolution also, as per ‘Rule 17’ of its Constitution.

Such then is the judgment.  All in all, it is a balanced and well-reasoned judgment and far be it for me to criticize it.  I shall now turn to the reasons that I think the judgment is especially important for our times.

The reasons that make the judgment important

I shall discuss two reasons.  First, the court sets out certain principles relating to the definition of ‘federalism.’ The court bases its discussion on the dictionary-definition of ‘federalism,’ and compliments that by referring to certain observations of Chief Justice Sharvananda from the judgment in the 13^th Amendment case.

The conclusion of the court, which is an amalgamation of the aforesaid dictionary-definition plus CJ Sharvananda’s observations is that the terms ‘Unitary’ and ‘Federal’ are misleading (i.e. there can be unitary elements in a federal system and vice versa) but the fundamental juxtaposition is between unitary/federal on the one hand and ‘Confederation’ on the other.   The key passage with respect to this is as follows:

‘It is established that there is a clear distinction between the words ‘federation’ and ‘confederation.’  The main issue in this case is whether advocating the establishment of a federal state is tantamount to establishment of a separate state….The labeling of states as unitary and federal sometimes may be misleading.  There could be unitary states with features or attributes of a federal state and vice versa.  In a unitary state if more powers are given to the units it could be considered as a federal state.  Similarly, in a federal state if the centre is more powerful and the power is concentrated in the centre it could be considered as a unitary state.  Therefore, sharing of sovereignty, devolution of power and decentralization will pave the way for a federal form of government within a unitary state.  The Thirteenth Amendment to the Constitution devolved power to the provinces.  The ITAK is advocating for a federalist form of government by devolving more powers to the provinces within the framework of a unitary state.  Advocating for a federal form of government within the existing state could not be considered as advocating separatism.’ (page 17)

To the best of my knowledge, this is the first time that a Sri Lankan court has explicitly articulated the above point, and it has profound ramifications, particularly to ongoing discussions about devolution of power to the Provinces.

To digress a moment, as a general matter, to my knowledge all hitherto discussions of federalism in this country have been based on definitions proffered by various academics, public intellections and suchlike pundits, and the common element in these definitions is that they see federalism as being part of a single continuum, with ‘Unitary’ at one extreme end of it and ‘Confederation’ at the other.

Under the aforesaid definitions, it is possible to interpret federalism as permitting an arrangement where the central government and the peripheral units are equals, or co-equals, ‘supreme within their own spheres of influence.’

What the court has done with Chandrasoma’s judgment is to put an end to the aforesaid speculations.  The court has established that the valid definition of ‘federalism’ at least in terms of its application in Sri Lanka is the dictionary-definition (which is also the classical definition of the concept ‘federalism’), where the fundamental dichotomy is between federalism on the one side and confederation on the other.

Furthermore, by relying on CJ Sharvananda’s observations in the 13^th Amendment judgment, the court has identified the distinctive element that turns a federal system into a confederation, to wit:  it is division of sovereignty.  Court cites with approval the following passage from the CJ Sharvananda’s judgment in the 13^th Amendment case:

‘In a Unitary State the national government is legally supreme over all other levels.   The essence of a Unitary State is that sovereignty is undivided – in other words, that the powers of the central government are unrestricted.  The two essential qualities of a Unitary State are 1) the supremacy of the central Parliament and 2) the absence of subsidiary sovereign bodies.  It does not mean the absence of subsidiary law-making bodies, but it does mean that they exist and can be abolished at the discretion of the central authority.’  (page 10)

To repeat, the distinctive characteristic of the existing system of government in Sri Lanka, whether we wish to call it ‘Unitary’ or ‘Unitary/Federal,’ is undivided sovereignty. The practical manifestation of this in terms of the distribution of powers between the center and the provinces is that, no matter how much power may be devolved to the provinces, the center must always retain the power to keep the provinces under control, which necessarily includes the capacity to take back the powers of the provinces if needed.

It follows from the aforesaid that if an attempt is made to dilute the powers of the center to an extent where the center can no longer exert effective control over the provinces, such an attempt cannot be justified as an attempt to enhance or further federalism: it is instead an attempt to break out of the federal model and pursue a confederation.

The importance of Chandrasoma’s case is that the aforesaid ideas have now become a part of the constitutional jurisprudence of Sri Lanka.  What are the ramifications of this?  I’ll just explain three lasting ramifications.

First, ITAK is permitted to advocate for ‘federalism,’ but only within the ‘existing system,’ which is to say, the unitary/federal model as now defined by court.  In such a system, there is a distinct limit to the amount of power that can be devolved to the peripheral units, and that limit – the red-line, as it were – is where the centre loses the capacity to impose effective control over the peripheral units, including to take back at its discretion the powers devolved to the units.

Second, under the definition of ‘federalism’ set out by the court, a right to external self-determination does not exist in our country for people dissatisfied for whatever reason with the amount of power devolved to the Provinces.  They must adjust their own demands and expectations and function within the parameters of the existing system.  Court confirms this by citing with approval the famous ruling of the Canadian Supreme Court in Reference re Secession of Quebec.   Court specifically cites the following passage from the aforesaid judgment:

‘The Court was also required to consider whether a right to unilateral secession exists under international law….a right to secession only arises under the principle of self-determination of people at international law where ‘a people’ is governed as part of a colonial empire, where ‘a people’ is subject to alien subjugation, domination or exploitation, and possibly where a ‘people’ is denied any meaningful exercise of its rights of self-determination within the state of which they are a part.  In other circumstances peoples are expected to achieve self-determination within the framework of their existing state.  A state whose government represents the whole of the people or peoples resident within its territory, on the basis of equality and without discrimination and respects the principle of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states.’  (p. 16)

Since the Tamils of Sri Lanka are not under colonial occupation, or under ‘alien subjugation and domination,’ and furthermore, since the democratic rights of Tamils are respected – as evidenced by the fact that members of ITAK are in Parliament and in Provincial Councils – the ITAK cannot claim that the Tamils of Sri Lanka have a right to external self-determination under international law.

The judgment in Chandrasoma’s case now makes it easier to make the above case before the international community, because it has clarified what the ‘existing system’ is.  Also, it opens the way for opponents of devolution – not just of further devolution but even of the amount of devolution that has been affected so far (i.e. under the 13^th Amendment)- to say something like this:

‘If what ITAK wants is more power or autonomy for Tamils, and a unitary/federal system allows for devolution of powers as long as the Center retains the unshakeable capacity to control the Provinces effectively including to withdraw the powers given to the Provinces, let’s have such a system, but let the unit of devolution be something other than the Province, say, the District.’

ITAK, and all other ‘federalists’ in this country, will have to give a reasonable reply to a query such as the above, especially if it is asked in the international arena.  And until such an answer is given, they will find it difficult to advance any arguments about the purported right of Tamils in this country to external self-determination under international law.

Third, if it had been the idea of the TNA, the ITAK and their assorted allies to permit the word ‘Unitary’ to remain in the Constitution, but bring in constitutional changes that diluted the powers of the center over the periphery to an extent where the center can no longer effectively control the actions of the Provincial Governments – for instance by curtailing the powers of the President over the Provincial Governor or by eliminating the concurrent list –  without subjecting the related constitutional amendment to a referendum, such a thing is no longer possible.

Now that the meaning of ‘federalism’ has been clarified with respect to its defining characteristic, no matter what one calls the resulting form of government, if there’s a reduction or a change in the power of the Centre vis a vis the Provinces, the issue of whether there’s the potential for that change to result in a division of sovereignty arises.

Sovereignty, as everyone knows, is a matter that comes under Article 3 of the Constitution, long recognized as the very backbone of the Constitution, and one of the Articles that automatically requires a referendum in order to amend.

Therefore, if an attempt is made to sneak in constitutional changes that dilute the power of the Centre vis a vis the Provinces by relying solely on a two-third majority in Parliament, now there’s a chance to challenge the related Bill under Article 3 of  the Constitution, and seek a referendum.  That is a huge advantage for the People at this moment.

Finally, the important point about Chandrasoma’s case is that in the course of it Court ordered an English translation of the ITAK Constitution to be produced by the Department of Official Languages.  To the best of my knowledge this is the only such official translation of the document because the version in the Elections Commissions’ office is in Tamil.

As already mentioned, in ‘Rule 17’ of the Amendment to the ITAK Constitution in 2008, it explicitly states that ITAK endorses all resolutions and acts of the TULF going back to 14^th May 1976.  That means ITAK endorses the Vaddukoddai Declaration, an indisputably separatist document, unless in the time between 1976 and 2008 the TULF has passed a resolution renouncing the said Declaration.

In Chandrasoma’s case, the court deemed the above fact irrelevant, and for good reason.  However, the fact that ITAK has endorsed the resolutions and acts of the TULF going back to 14^th May 1976 is now in the public domain, thanks to Chandrasoma.  All that is required is for a civic-minded Sri Lankan to re-file an application  against the ITAK solely on ‘Rule 17’ of its Constitution, and this time list the TULF as a respondent also, and then let them come before court and explain themselves.

To the best of my knowledge, the TULF has now renounced the Vaddukoddai Declaration.  So, all they have to do is get on the stand (figuratively speaking) and say so.  In that event, the ITAK is caught, well and good.   Meanwhile, if ITAK tries to amend its Amendment and belatedly renounce the ‘VD,’ they’ll be caught inter alia under Section 8(2)(f) of the Evidence Ordinance (‘subsequent conduct’).  So, they are stuck.

In short, if the ITAK thought that with Chandrasoma’s case they were rid of a headache, they are mistaken.  It may well be that, their troubles – or rather the ‘fun’ – is just beginning.